Terms of Service
Terms of Service SaaS
Last Modified: February 18, 2021
These terms of service (these “Terms of Service”) between steadybit GmbH, with its seat in Solingen, Germany, and its domestic business address at Hochstraße 11, 42697 Solingen, Germany, registered with the commercial register of the local court of Wuppertal under HRB 30206, (“steadybit”) constitute an integral part of the agreement regarding the provision of services by steadybit to the Client (as defined below) by way of software-as-a-service as described in the Order Form (as defined below) (such agreement the "SaaS Agreement").
1. DEFINED TERMS
Any terms not defined in these Terms of Service but defined or described in the Order Form or elsewhere in the SaaS Agreement shall have those definitions and/or shall be construed to have the same meaning.
is steadybit’s IT monitoring and disrupting services hosted on behalf of steadybit and includes Agents, as described in steadybit’s documentation available at https://docs.steadybit.io/ (“Documentation”). Such Agents will be installed on the Client’s servers and application environment(s) by the Client at the Client's costs; steadybit does not owe any installation services. steadybit may update or change the Service or Agent with no prior notice to the Client, and the Client may be required to install updates to the Agent installed on the Client's servers and application environment(s) to continue to receive the Service. steadybit expressly declares that the Service is designed to perform certain stress-tests and create circumstances that may cause disruptions within the IT infrastructure of the Client and may result in malfunctions, failures and damages ("Disruptions"). The Disruptions are consequences of the contractual use of the Services and the Client is solely responsible for implementing appropriate measures, such as test environments and back-up systems, to ensure that the Disruptions may be recovered from and do not affect the performance of the productive systems of the Clients. The Services are are designed to be used in live and/or productive IT environments only after conducting the desired experiments within test environments closely similar to the live and/or productive IT environments to ensure the safety of such live and/or productive IT environments, the Services are not designed to be used in critical infrastructures, in particular such infrastructure relating to public health, military, defense, or public utilities (e.g. gas, water, energy).
1.2 Order Form
means the document signed by both parties setting forth prices and quantities and/or duration of usage for Client’s purchase of the Service in its form as amended or altered from time to time, as the case may be.
1.3 Effective Date
means the date on which the earlier of the following occurred: (i) the Order Form as signed by the Client was accepted by steadybit, either by declaration in textform or orally, or (ii) steadybit commenced with the provision of the Services requested in the Order Form.
1.4 Named User
means any employee of the Client that has been given user account details (username and password) to access and make use of the Services.
The SaaS Agreement has a term of one (1) year commencing on the Effective Date. The term shall be extended by a further 12 months in each case if the SaaS Agreement is not terminated before the end of the respective term pursuant to the provisions of Section 9 of these Terms and Conditions or for good cause.
3. INTELLECTUAL PROPERTY
Subject to the provisions of the SaaS Agreement, steadybit hereby grants to the Client a nonexclusive, revocable, nonsublicensable, nontransferable license to access and use the Service during the Term solely for its internal business operations. The Client is solely responsible for providing all telecommunications, computer and other equipment necessary for installing and accessing the Service. steadybit shall provide initial log-in data consisting of username and password; the Client undertakes to immediately change the initial password and secure the log-in data against unauthorized access by industry standards. steadybit retains the right, in its sole discretion and with no notice to Client, to restrict or terminate access to the Service by Client if steadybit has a good faith belief that Client has materially breached the terms of the SaaS Agreement, any steadybit policies, or is using the Service as not intended or in a way that violates any applicable federal, state, local or international laws or regulations, or the rights of any third party.
steadybit retains all rights not expressly granted to Client in the SaaS Agreement. Client acknowledges and agrees that steadybit retains all rights, title and interest in and to the Service, including without limitation copyrights, patent rights, trademarks and trade names, and trade secrets.
3.3 Restrictions on Use
Except as otherwise specifically permitted under this SaaS Agreement, Client shall not, nor will Client permit any third party to (i) copy, modify, distribute, sell, assign, pledge, sublicense, lease, loan, deliver or otherwise transfer or make available the Service or any of its components to any third party in whole or in part, provided that Client may copy steadybit’s Documentation as needed for internal business use; (ii) derive or attempt to derive the source code of any portion of the Service by any means; (iii) reverse engineer, decompile, disassemble, or translate the Service or any part thereof; (iv) upload, post, mail, publish, transmit or distribute in any way the Service or its components; (v) make available through the Service any material or information that infringes the intellectual property rights, rights of publicity, or right of privacy of any entity or person, or impersonates another person including without limitation a steadybit employee. The Client is not permitted to grant access to the Services to more than the amount of Named Users agreed upon in the Order Form.
3.4 No Trademark License
No license, right or interest in the trademarks, trade names or service mark of either party is granted hereunder, except as either party may agree in writing.
3.5 New IP
The industrial property rights and copyrights as well as the know-how created by the Client during the use of the Services and consisting of alterations, amendments or advances in the development of the Service, the software and IP licensed under the SaaS Agreement ("New IP"), shall belong exclusively to steadybit and are hereby transferred in full by the Client to steadybit in accordance with the following provisions. Insofar as the New IP consists of copyrighted works, the Client hereby assigns to steadybit the exclusive, unrestricted, transferable and sublicensable right of use. This right of use includes in particular the right to copy, distribute and/or make publicly available the New IP in all known and currently unknown types of use, including the right to edit and further develop the New IP and to use the results thereof to the aforementioned extent. The Client will enter into valid and sufficient agreements with its employees (including researchers, representatives, consultants, freelancers and subcontractors) or will take all necessary measures to ensure the transfer of the New IP created by this group of persons to steadybit. In particular, the Client shall make unrestricted use of the inventions - eligible for patent and/or utility model protection - created by its employees and being a part of the New IP and/or works made for hire.
4. CONFIDENTIAL INFORMATION AND CLIENT DATA
4.1 Confidential Information
By virtue of the SaaS Agreement, either party may come into contact with the other party’s non-public or proprietary information (“Confidential Information”). Confidential Information shall include, without limitation, any information or materials supplied to, obtained by or observed by either party or its employees, agents, consultants or subcontractors including proprietary software, source code documents, financial information, documentation, data, benchmark tests, specifications, customers, marketing strategies, business practices and any other proprietary information supplied to one party by the other and identified as proprietary or confidential, user identification and passwords, and account information. The Service and its components (including Agents), its Documentation, the terms of any Order Form and these Terms of Service are also considered Confidential Information. Each party shall hold the Confidential Information of the other party in strict confidence and not disclose the Confidential Information to third parties nor use it for any purpose not authorized herein, nor permit access to Confidential Information, except to those of its employees or authorized representatives having a need to know and who are bound by confidentiality obligations at least as restrictive as those contained herein. Upon learning of any unauthorized use or disclosure of a disclosing party’s Confidential Information, the other party shall immediately notify the disclosing party.
The above restrictions of Section 4.1 shall not apply to: (i) information that becomes, through no act or fault of the party receiving the Confidential Information (“Receiving Party”), publicly known or generally known in the relevant industry; (ii) information received from a third party not obligated under a confidentiality agreement with the party disclosing the Confidential Information (“Disclosing Party”); (iii) information independently developed by either party without reference to the Confidential Information; (iv) information required to be disclosed by law or court or governmental agency order, provided the party gives prompt notice of such requirement to the other party, or; (v) disclosures to a professional advisor under a duty of confidentiality.
4.3 Ownership and Return of Confidential Information
All Confidential Information shall remain the property of the Disclosing Party. Upon written request of the party disclosing the Confidential Information (“Disclosing Party”), the other party shall promptly return to the Disclosing Party all documents and other tangible materials representing the disclosing party’s Confidential Information, together with all copies thereof; at Disclosing Party’s expense.
4.4 Client Data
steadybit’s Service collects data that may include Service usage data, Service quality management and monitoring data, and Service user lists (“Client Data”). Client will not configure the Service to collect any personally-identifiable information or payment information (“Personal Data”) without steadybit’s prior written approval. Title to ownership of all data transmitted to steadybit pursuant to Client’s use of the Services shall remain with Client, provided, however, that Client hereby grants steadybit a worldwide, non-exclusive, irrevocable license to access, use and analyze Client Data, which may be used by steadybit for the purpose of developing, troubleshooting and/or improving the steadybit Service, bill and invoice the Client for Service Usage and to assist the Client in operating the Service. Upon request by Client made within thirty (30) days of the effective date of termination, steadybit will delete all Client Data, with the exception of anonymized data which may be kept and used by steadybit subject to steadybit’s discretion. After such a thirty day period, steadybit shall have no obligation to maintain or provide any of Client’s Data.
5. DISCLAIMER OF WARRANTY
The steadybit Service, access thereto, and any services provided hereunder are provided on an “as is” basis, and steadybit and its affiliates and agents: (a) do not make, and hereby expressly disclaim, any and all warranties, whether express or implied, including but not limited to warranties of merchantability, noninfringement, fitness for a particular purpose, and any warranties arising from course of dealing, usage, or trade practice; (b) do not warrant that access to the steadybit service will be uninterrupted, error-free, or secure, or that any information, software, or other material accessible through the steadybit service is free of viruses (although steadybit represents that it will use commercially reasonable efforts to avoid viruses) or other harmful contents or components; (c) shall in no event be liable to Client or anyone else for any inaccuracy, error or omission in, or loss, injury or damage (including loss of data) caused in whole or in part by, or failures, delays or interruptions of the steadybit service. Some jurisdictions may not allow the exclusion or limitation of certain warranties. In such jurisdictions, steadybit’s liability shall be limited to the maximum extent permitted by law.
6.1 By steadybit
steadybit agrees to indemnify, defend and hold harmless Client from any third party suits, losses, claims, demands, liabilities, costs and expenses (including reasonable attorney and accounting fees) that Client may sustain or incur arising from any actual and either grossly negligent or willful infringement or misappropriation by steadybit of any patent, copyright, trademark or trade secret of a third party. In the event that the Service is, or in steadybit’s sole opinion only after the assertion of a third party claim is likely to be, enjoined due to the type of infringement described in this Section 6, steadybit, at its option and expense, may (a) replace the applicable Service with functionally equivalent non-infringing technology or (b) obtain a license for Client continued use of the Service, or, if the foregoing alternatives are not reasonably available to steadybit, (c) terminate the SaaS Agreement and immediately refund all sums prepaid hereunder. The foregoing provisions of this section state the entire liability and obligations of steadybit and the exclusive remedy of Client, with respect to any alleged or actual infringement of patents, copyrights, trade secrets, trademarks or other intellectual property rights by the software.
6.1 Indemnification Requirements
In claiming any indemnification under this Section 6, the indemnified party shall promptly provide the indemnifying party with notice of any claim that the indemnified party believes is within the scope of the obligation to indemnify. The indemnified party may, at its own expense, assist in the defense if it so chooses, but provided that the indemnifying party promptly acknowledges its indemnity obligation hereunder and undertakes defense of any applicable third party claim, the indemnifying party shall control the defense and all negotiations relative to the settlement of any such claim, provided further that it may not make any admission on behalf of the indemnified party or agree to any liability or payment which will not be made immediately and in full by the indemnifying party without the indemnified party’s prior written consent. Any settlement intended to bind the indemnified party shall not be final without the indemnified party’s written consent, which consent shall not be unreasonably withheld or delayed. A party’s indemnification obligations hereunder shall be reduced to the extent the indemnified party fails to comply with this Section 6.2 or to cooperate reasonably in the defense of any indemnified claim hereunder and such failure prejudices the defense of such claim.
7. LIMITATION OF LIABILITY
7.1 Exclusion of Consequential Damages
In no event shall steadybit or steadybit’s suppliers be liable for any indirect, incidental, special or consequential damages, including without limitation damages for loss of profits, data or use, incurred by Client or any third party, whether in an action in contract or tort, even if steadybit has been advised of the possibility of such damages.
7.2 Limitation of Direct Damages
The aggregate and cumulative liability of steadybit and its suppliers for damages hereunder shall in no event exceed the amount of fees paid by Client for the previous six (6) months under this SaaS Agreement.
In any event, steadybit is only liable in cases of damages caused by gross negligence or willful misconduct by steadybit or contractors commissioned by steadybit for fulfilling the obligations of steadybit to the Client under the SaaS Agreement.
8. FEES AND PAYMENTS
All fees and amounts due to steadybit shall be set forth in one or more Order Forms. All fees are non-refundable (section 6.1 shall remain unaffected), and do not include any applicable taxes if not stated otherwise on the Order Form, which are the sole responsibility of the Client. All payments are due within thirty (30) days from the date of invoice. All payments not made within such thirty (30) day period shall be "Late Payments". Late fees shall accrue on all Late Payments at the lesser of (i) 1.5% per month, or (ii) the maximum rate allowed under law. If Late Payments are not made within fifteen (15) days of written notice to Client by steadybit, steadybit may, in its sole discretion, immediately terminate the applicable SaaS Agreement, and Client’s access to the Service with no further liability to Client.
This SaaS Agreement shall continue to be in force until terminated by either party in accordance with this Section 9 or for good cause under applicable law.
9.2 Ordinary Termination
Each Party is entitled to terminate the SaaS Agreement with three months' written notice prior to the end of the term.
9.3 Termination for Breach
If either party materially breaches this SaaS Agreement and such breach is not cured within thirty (30) days after written notice is given to the breaching party, then the other party may, by giving written notice to the breaching party, terminate the SaaS Agreement as of the end of such thirty (30) day period or such later date as is specified in such notice of termination. steadybit may also immediately terminate this SaaS Agreement pursuant to the terms of Section 3.1.
9.4 Termination for Account Inactivity
steadybit may close any Client account and terminate this SaaS Agreement if the Client’s account is inactive for 180 days or longer, with no prior notice or compensation to the Client.
9.5 Effect of Termination
Upon termination of the SaaS Agreement due to Client’s breach, Client shall pay all amounts due to steadybit and shall not be entitled to a refund for any amounts already paid.
The laws of the Federal Republic of Germany shall govern this SaaS Agreement without reference to its conflict of law principles and without recourse to the CISG. All claims under, or otherwise with respect to, this SaaS Agreement shall be brought and maintained in the state and federal courts with authority in Solingen, Germany, and the parties hereby expressly consent (and waive any right to otherwise object) to the exclusive venue and jurisdiction of such courts.
Neither party may assign this SaaS Agreement, or its rights or duties hereunder, to any third party, in whole or in part, except that it is agreed that a change in control is not an assignment subject to this section; provided, however, that steadybit may terminate this SaaS Agreement in case of a change in control (in particular change of at least 50% of the voting rights in the Client, or as a result of a change in the title of shares, a party not affiliated with the Client on the Effective Date holds more than 50% of the voting rights in any entity controlling the Client) in case the person gaining control is reasonably viewed by steadybit as a competitor; provided, further, steadybit may assign this SaaS Agreement to any of its affiliates.
All notices must be in written form or electronic form with digital signature (regardless of whether such signature is qualified) if a stricter form is not required by applicable law. The receiving address shall be the address indicated in the Order Form, or such other address as either party may indicate by written notice or in electronic form.
Should any provision of this SaaS Agreement, or any provision incorporated into this SaaS Agreement in the future, be or become invalid or unenforceable, the validity or enforceability of the other provisions of this SaaS Agreement shall not be affected thereby. The same shall apply if the parties have failed to address a certain matter in this SaaS Agreement. The invalid or unenforceable provision shall be deemed to be substituted by, and the parties shall be deemed to have agreed upon, a suitable and equitable provision which, to the extent legally permissible, comes closest to the purpose of the invalid or enforceable provision or to the presumed intent of the parties if had they considered the matter.
In the event of any litigation arising out of or in connection with this SaaS Agreement or its interpretation or performance, the prevailing party shall be awarded reasonable attorneys’ fees and expenses, court costs, and reasonable costs for expert and other witnesses attributable to the prosecution or defense of that controversy or dispute.
This SaaS Agreement constitutes the entire, exclusive and final statement of the SaaS Agreement of the parties with respect to this subject matter, and supersedes all prior and contemporaneous representations, proposals, negotiations, discussions, and SaaS Agreements between the parties, whether oral or in writing. There are no intended third-party beneficiaries under this SaaS Agreement.
This SaaS Agreement may be executed in counterparts, which taken together shall be considered one original SaaS Agreement.
The provisions of Sections 3.3, 3.5, 4, 5, and 7 shall survive and the obligations thereof continue for a period of four (4) years following termination.
Except for Client’s obligations to make payments as set forth in this SaaS Agreement, each party shall be excused from performance for any period during which, and to the extent that, it or its subcontractor(s) is prevented from performing any obligation or service, in whole or in part, as a result of causes beyond its reasonable control and without its fault or negligence. Such acts shall include without limitation acts of God, strikes, lockouts, riots, acts of war, epidemics, governmental laws and regulations imposed after the fact, fire, communication line failures, power failures, earthquakes, floods or other natural disasters (a “Force Majeure Event”). Delays in delivery or in meeting completion dates due to Force Majeure Events shall automatically extend the Term of this SaaS Agreement accordingly.